Citation: R v Fell [2004] NSWCCA 235
Court: New South Wales Court of Criminal Appeal
Date: 14 July 2004
Judge(s): Giles JA, Hulme J, Adams J
Background
The respondent, a former employee of a components business, pleaded guilty to 14 charges of dishonestly obtaining money by deception under s 178BA of the Crimes Act. Between March and July 2001, he fraudulently credited funds from his employer's system into his personal bank account, removing portions of transaction records to conceal the conduct. The total amount involved across the 14 charges and 70 additional matters taken into account was approximately $542,000, of which nearly $280,000 was ultimately repaid.
The sentencing judge in the District Court, Tupman DCJ, imposed concurrent sentences of 16 months (counts 1 to 13) and 22 months (count 14, incorporating the additional offences), each fully suspended on the respondent entering into good behaviour bonds with conditions requiring ongoing psychiatric and psychological treatment.
The Crown appealed to the Court of Criminal Appeal, arguing the sentences were manifestly inadequate and that the sentencing judge erred in failing to accumulate any of the sentences imposed.
Legal Issues
- Whether the suspended sentences were manifestly inadequate given the seriousness and extent of the fraud
- Whether the sentencing judge erred by failing to accumulate the sentences on counts 1 to 13 with the sentence on count 14
- What weight should be given to the respondent's significant psychiatric illness in the context of the five principal sentencing factors: general deterrence, specific deterrence, rehabilitation, protection of the community, and retribution
Decision
The Court dismissed the Crown appeal, finding that the sentencing judge had not exceeded her legitimate sentencing discretion. The Court accepted the diagnosis of Bipolar Affective Disorder, Schizotypal Personality Disorder, and other conditions, together with the psychiatric opinion that the offending would more probably than not not have occurred had the respondent received effective treatment at the time. This finding carried significant weight across all sentencing considerations.
On general deterrence, the Court observed that where an offender's mental condition played a substantial role in the commission of offences, the significance of general deterrence is reduced. On specific deterrence and rehabilitation, the Court agreed with the sentencing judge that the respondent's treatment had been successful, that his condition was now controlled, and that his prospects of rehabilitation were best served by remaining in the community.
The Court acknowledged that in most cases some accumulation of sentences would have been required, and that the accumulation could have been greater than merely the sentence on the 14th count running concurrently with the others. However, once it was accepted that 22 months was a defensible total sentence and that the sentence on count 14 was not itself excessive, there was no obligation to impose partial accumulation. The failure to do so did not offend the High Court's decision in Pearce v R.
The Court characterised the sentencing task as genuinely difficult. The extent of the offending was objectively serious, but the respondent's subjective circumstances, including his psychiatric illness, early plea, substantial restitution, and demonstrated commitment to treatment, demanded an outcome well removed from what the objective circumstances alone would have required.
Orders Made
- The Crown appeal is dismissed.
Key Takeaways
- Where a sentencing court accepts credible psychiatric evidence that an offender's mental illness was causally connected to the offending, that illness can substantially reduce the weight given to general deterrence, specific deterrence, retribution, and the need for community protection.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that fully suspended sentences are not automatically inadequate for serious fraud offences where the offender's psychiatric condition was a direct contributing cause of the conduct.
- Accumulation of sentences is not always legally required: provided the total sentence is defensible and no individual sentence is excessive, a sentencing judge is not obliged to partially accumulate sentences even across multiple counts spanning an extended period.
- The High Court's decision in Pearce v R does not mandate accumulation in every multi-count matter; it is satisfied where the total sentence appropriately reflects the totality of the criminality.
- Sentencing is not an exact science, and appellate courts will not intervene merely because a different outcome might have been reached, so long as the sentencing judge's conclusion falls within the legitimate bounds of discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA (dishonestly obtaining money by deception)
Cases:
- Pearce v R (High Court) (on accumulation of sentences in multi-count proceedings)
- (Case referenced at paragraph 30, citation cited as (2001) 103 A Crim R 373, party name not fully reproduced in provided text)